MauledAgain

Prof. James Edward Maule's more than occasional commentary on tax law, legal education, the First Amendment, religion, and law generally, with sporadic attempts to connect all of this to genealogy, theology, music, model trains, and chocolate chip cookies. Copyright 2004-2019 James Edward Maule.

Friday, May 30, 2014

What Does It Mean to Dispose of A Passive Activity?

Section 469(a) prohibits a taxpayer from deducting passive losses in excess of passive income. Under section 469(b), passive losses that cannot be deducted under section 469(a) are carried forward and treated as a deduction in the next taxable year, and to the extent not used, are carried forward indefinitely until used. Section 469(g) provides that passive losses carried forward and not used are generally allowed when the taxpayer “disposes of his entire interest in any passive activity.”

In Herwig v. Comr., T.C. Memo 2014-95, the Tax Court was presented with the question of whether, and when, the taxpayers disposed of their interests in passive activities, which they held through pass-through entities. Specifically, the taxpayers argued that when the creditor foreclosed on the properties associated with the activity, they disposed of the activity. Alternatively, they argued that when, in a later year, the pass-through entities filed returns marked as a final return, the disposition took place in that year. The IRS disagreed.

The Tax Court held that disposition does not necessarily take place when foreclosure occurs, because the debtor has the opportunity to contest the foreclosure, as did the taxpayers in the case. The fact that the pass-through entities owned by the taxpayers continued to list the properties on their tax returns for taxable years after the year in which the foreclosure occurred strengthened the court’s conclusion that the taxpayers had not disposed of the activity. The court also concluded that marking a return as final does not establish that all of the assets listed on the return have been disposed of. It was not until the year after the taxable year for which the allegedly final returns were filed that the taxpayers and the creditor settled the foreclosure dispute. That taxable year was not in front of the court.

Presumably the pass-through entities need to file returns for the taxable year in which the disposition actually occurred, that is, the year in which the foreclosure was settled. By not filing timely returns for that taxable year, the taxpayers may end up back in Tax Court arguing the consequences of filing late returns.

Now comes a sad story that drives home the risks being foisted on Americans by those determined to eliminate or minimize government. According to this report, seven people were injured when an SUV hit a pothole on Interstate Route 95 near the Philadelphia Airport. I’ve driven that road recently. It is a minefield of deep cavities, many of which are in the portions of the lanes where vehicle tires must traverse. The accident happened at 8 o’clock at night, making it likely that it was even more difficult if not impossible for the driver to see the lurking danger. It is more than likely that the pothole had been there for a while. Why? With limited funds, and therefore limited staffing, the highway departments can do only so much.

The vast majority of Americans do not favor potholes. They want them fixed, and quickly. They are willing to pay to have them fixed. Yet a minority of intransigents dead-set on destroying government, society, and people, have managed to co-opt legislatures, through the evils of gerrymandering and bribery, so that the needs of America take a back seat to the desires of the selfish.

Sadly, I have little hope that this is the last story of this kind that we will read or hear. There will be more, and probably many more. A nation with crumbling infrastructure, unrepaired because of strange fixations on the tax hatred, cannot defend itself or its people. The failure of so-called leaders to protect those to whom fiduciary duties are owed is at the root of the problem, and until those leaders are replaced by people willing to shut down the bribery and disassemble the gerrymandering, the potholes will continue to injure and kill people, destroy property, and make people miserable. The nation gets what the nation votes for.

Monday, May 26, 2014

Windfalls Are Taxed, Even If The Taxpayer Thinks It is Unfair to Do So

It is a basic tax law principle that economic windfalls are taxed. That principle applies to a variety of transactions, and as a recent tax court case, Debough v. Comr., 142 T.C. No. 17 (2014), demonstrates, comes into play when property sold by the taxpayer is reacquired by the taxpayer. In this case, the property in question was the taxpayer’s principal residence and the taxpayer was unable to shelter any of the gain under section 121.

The taxpayer sold his principle residence in 2006 under an installment sale agreement. The taxpayer sold the residence for $1,400,000. Under the sales agreement, the buyers paid $250,000 at the time they entered into the contract, and promised to pay $250,000 on July 12, 2007, along with $25,000 semi-annually until July 11, 2014, when the balance was due.

The taxpayer had purchased the residence for $25,000, and recomputed his adjusted basis after his wife died. Using an adjusted basis of $742,204, he computed gain of $657,796. Before trial, the IRS and taxpayer stipulated that the basis was $779,704.

In 2006, the taxpayer reported gain of $28,178. He did so by excluding $500,000 of gain under section 121, because his wife had died within the past two years, permitting the taxpayer to use the $500,000 limitation rather than the $250,000 limitation. Thus, the taxpayer computed taxable gain of $157,796 ($657,796 minus $500,000), and divided it by $1,400,000 to generate a gross profit ratio of 11.27 percent. Multiplying the $250,000 payment received in 2006 by 11.27 percent generated taxable gain of $28,178. In 2007, the taxpayer received the second $250,000 payment, and again reported $28,178 in taxable gain. In 2008, the taxpayer received only $5,000, and using the 11.27 percent gross profit ratio, reported taxable gain of $564. Thus, the taxpayer reported total taxable gain of $56,920.

The buyers failed to comply with the terms of the contract. The taxpayer reacquired the property in July of 2009, incurring costs of $3,723. The taxpayer treated the reacquisition as full satisfaction of the indebtedness, reporting gain of $97,153. Subsequently, the taxpayer amended the 2009 return and removed the $97,153 gain. Before trial, the IRS and the taxpayer agreed that the taxpayer was obligated to report at least $97,153 of gain. The IRS, however, took the position that the taxpayer ought to have recognized $443,644 of gain. The IRS computed this gain by subtracting the $56,920 reported by the taxpayer from 2006 through 2008 from the $505,000 of cash received by the taxpayer.

Under section 1038(b), a taxpayer who reacquires real property in satisfaction of debt secured by that property is taxed on any money and other property received before the repossession, except to the extent previously reported as income. Section 1038(e) provides that if the taxpayer reacquires property with respect to the sale of which gain was not recognized under section 121, and within one year of the reacquisition the taxpayer resells the property, then section 1038(b) does not apply, and for purposes of section 121, the resale is treated as part of the original sale of the property. The taxpayer and the IRS agreed that section 1038(e) did not apply because the taxpayer did not resell the property within a year.

The taxpayer argued that section 1038(e) does not preclude applying section 121 to the original sale, because “if Congress had intended to completely nullify the section 121 exclusion upon reacquisition of a taxpayer’s principal residence, it would have drafted a provision explicitly so stating.” The IRS argued that the existence of section 1038(e) “confirms that Congress was aware of the interplay between sections 1038 and 121 and drafted section 1038(e) as a limited response thereto; the absence of a ‘more generous provision’ regarding the overlap of sections 1038 and 121 confirms that Congress intended for taxpayers in petitioner’s situation to be treated under the general rules of section 1038.”

The court agreed with the IRS. It held that section 1038 applied to the reacquisition, and that section 121 does not apply to a transaction subject to section 1038 unless it is within section 1038(e). Accordingly, because section 1038(e) did not apply, the taxpayer was subject to section 1038(b) and section 121 did not apply.

The court pointed out that economically, the taxpayer began with property and ended up with property and $505,000. The court cited the Glenshaw Glass decision in support of its conclusion. That case stands for the proposition that windfalls are gross income. The $505,000 was a windfall, as the taxpayer ended up retaining the property. It was not “unfair,” according to the court, to tax the $505,000. Because $56,920 had already been reported as gain, the other $443,644 of gain was taxable in 2009. Presumably, though the court did not mention it, the $3,723 cost of reacquisition is added to the taxpayer’s adjusted basis in the property to be taken into account when the property is resold.

Had the taxpayer resold the property within a year, the taxpayer would have escaped taxation, though how the “unused” portion of the exclusion would have been recovered is unclear. But the taxpayer did not do so, presumably because of adverse market conditions. Perhaps one year is too short of a window in which to resell principal residences under these circumstances. But that one-year period is a creature of the Congress, and cannot be changed by the IRS or by the courts. I don’t expect Congress to change that time period, not only because it isn’t accomplishing much of anything these days in terms of tax law, but also because it isn’t focusing on section 1038 and its interplay with section 121.

Friday, May 23, 2014

No Deduction If Entitled to Reimbursement

It is a long-established principle of federal income tax law that a taxpayer is not permitted to deduct an otherwise deductible expense to the extent that the taxpayer is entitled to reimbursement from the taxpayer’s employer. As I tell my students, it’s usually not the legal principle that stumps the taxpayer. It’s the application of the principle to the facts. This notion is illustrated by the taxpayer’s tale in Richards v. Comr., T.C. Memo 2014-88.

The taxpayer was a loan officer employed by Prospect Mortgage, LLC. Under the employment agreement, she was entitled to an expense reimbursement allowance equal to .0005 of the 1st Point of Revenue for each non-brokered loan. If the expenses exceeded that reimbursement, an employee was permitted to submit itemized receipts and other documentation and would be reimbursed for “any legitimate expense that were necessarily incurred in the performance of Employee’s duties that exceed the reimbursement allowance.”

The taxpayer traveled to New Orleans to attend a marketing event. She alleged she spent approximately $2,100. Prospect reimbursed her immediate manager for the cost of his trip but denied her oral request for reimbursement. She concluded that the denial was on account of her being a “probationary” employee who had not yet made any sales. After this denial, the taxpayer made no additional requests for reimbursement.

The taxpayer testified she paid expenses as a real estate loan officer, including the cost of a home office, equipment, supplies, subscriptions, and advertising. She was not reimbursed for these expenses by Prospect. She claimed these expenses as deductions on her income tax return. The IRS audited the return and denied the deductions.

The Tax Court explained that with respect to the New Orleans trip, the taxpayer did not qualify for reimbursement. However, the court concluded that she was not entitled to deduct the expenses because she failed to substantiate them. As for the other expenses, the court held that the taxpayer failed to establish that she did not have the right to reimbursement, failing, for example, to provide evidence of loan revenues that she generated. The court noted that the taxpayer admitted that she did not seek reimbursement for any expenses other than those for the New Orleans trip. Accordingly, the deduction of the employee business expenses was denied.

Demonstrating whether a taxpayer is or is not entitled to reimbursement requires presentation of all the facts permitting the IRS or a court to compute the extent to which the taxpayer was or would have been reimbursed. Not only should a copy of the employer’s reimbursement policy be provided, and not only should the taxpayer keep receipts and other documentation for the expenses, the taxpayer also needs to produce the other information that permits application of the employer’s reimbursement policy to the specific circumstances of the taxpayer’s outlays. In this case, the taxpayer failed to introduce evidence of her loan revenues, and she failed to supply receipts and other evidence for her expenses.

When the question “is the employee entitled to reimbursement?” is asked, providing the answer is much more a matter of evidentiary detective work than it is knowing a principle of tax law. The principle is about as easily expressed as any tax law rule. It’s the facts and circumstances part of the equation that poses the practical challenges. As I tell my students, being a lawyer is much more than knowing the law or being skilled in writing or oral advocacy. Being a lawyer, or a tax practitioner, requires the skills of a detective.

Wednesday, May 21, 2014

It Seems So Simple, But It’s Tax

The Treasury Inspector General for Tax Administration has released report, Significant Discrepancies Exist Between Alimony Deductions Claimed by Payers and Income Reported by Recipients. I haven’t decided which reaction bothered me the most. Is it the fact so much misreporting can arise from violating one straight-forward tax principle? Or is it the fact that the IRS has no system in place to detect comprehensively the misreporting?

The tax law principle in question is studied in pretty much every basic federal income tax course. The deduction of an alimony payment by the payor must match the gross income reported by the recipient. Unless the parties agree to treat the payment as neither gross income nor deduction, alimony must be included in the gross income of the recipient and is deductible by the payor.

According to the report, in 2008, alimony deductions were claimed on 577,003 federal income tax returns, amounting to $9.9 billion. The following year, the number of returns decreased to 573,904 but the total alimony deductions increased to $10.4 billion. In 2010, the number of returns on which alimony was deducted declined again, to 567,887, and the total deductions fell to $10 billion. Of the 567,887 tax returns filed in 2010 on which alimony deductions were claimed, 266,190, or 47 percent, were not fully matched by gross income inclusions on corresponding returns. In some instances, the recipient filed returns with no alimony gross income, in other instances, the recipient filed returns with alimony gross income less than the claimed deduction, and in still other instances, the recipient did not file a return even though the amount of the alimony in question would have required a return. The unreported gross income, or overstated deductions, however one wants to characterize the imbalance, exceeded $2.3 billion in 2010 alone.

The report concluded, “Apart from examining a small number of tax returns, the IRS has no processes or procedures to address the alimony reporting compliance gap.” Contributing to the problem not only are inadequate examination selection filters, but also “limited examination resources.” In theory, it ought to be easy to bring the claimed deductions into equivalence with reported gross income. Because the taxpayer identification number of the recipient must be reported by the payor, it should be simple to pull up the recipient’s return, determine whether the amount of the deduction is reported as gross income, and if it isn’t, pull both returns for audit. But it costs money to write the software, and it costs money to pull the returns, and it costs money to conduct the audit. Where does the IRS obtain that money? I suppose some people would argue that it ought to stop auditing corporations, and others would add a proposal to stop auditing tax returns filed by the wealthy.

People are increasingly aware that the IRS has limited resources to track down tax cheats. People are increasingly aware that the chances of getting away with tax fraud are getting better each day. Not that all of the mismatching is due to fraud, as surely some small fraction is attributable to negligence or simple innocent mistake, but the erosion of the tax pillars on which civilization is built promises to swell from a few falling stones to a landslide. After all, if this sort of noncompliance is taking place with respect to one simple tax principle, imagine what is transpiring with respect to all of the other tax rules, including the very many that are so complicated it’s not so easy to detect the noncompliance. It’s only a matter of time before the landslide buries the system.

The Oversight Board makes the same points that I, and others who understand the seriousness of the problem, have been making over the years. IRS funding has been cut, even though its responsibilities have increased. IRS funding has been cut even while other agencies have received increases to reverse the impact of the sequestration stunt. IRS funding is unpredictable, making it difficult or impossible for the IRS to establish and maintain programs to counter tax evasion and identity theft. IRS funding has been cut, preventing it from updating its technology and curtailing its ability to train employees and help them keep up with repeated changes in the tax law. IRS funding has been cut, causing reductions in taxpayer service, longer wait times on the IRS telephone assistance lines, increases in waiting times, decreases in Taxpayer Assistance Center activities, and delays in taxpayer correspondence. IRS funding has been cut, causing reductions in the number and scope of taxpayer audits, making it easier for taxpayers to evade taxes.

What person or entity, presented with a guarantee that investing a dollar would generate ten dollars, would reject that offer? There is no question that every dollar invested in the IRS generates ten dollars of revenue, revenue that would be collected without IRS intervention if all citizens were honest, but we don’t live in that sort of world. So why does Congress cut the IRS budget when it ought to be increasing it? The answer is simple. The people who control the Congress want to kill the IRS, eliminate federal tax revenues, eliminate federal spending, and eliminate the federal government. Some want to do this so that states can return to the days when they violated laws and human rights with impunity, daring anyone to put an end to their mistreatment of people other than the controlling elite. Others want to do this so that private corporations, under the control of the elite and free from voter control, can own and run everything for the benefit of the elite at the expense of everyone else.

Why do they succeed in this effort? Because it is easy to paint the IRS as the enemy of the people, and because the IRS has contributed to its bad reputation through mismanagement, though one wonders how much of that mismanagement is the consequence of insufficient funding. Every chance that anti-tax, anti-government advocates get to trash the IRS, even if it means twisting the facts, hiding some facts, or exaggerating facts, they pounce on the opportunity to rip apart the system that holds American civilization in place.

How many members of Congress will read the Oversight Board’s report? Few, if any. How many American citizens and residents will read the report? A handful, most of whom already know what’s in the report and understand the problem. How many people will act, write, speak, vote, or argue differently because of what’s in the report? A few, at most. Does this mean that writing the report was a waste of time? No. When all else fails, and the perpetrators of American decline are finally exposed, their claim that they did not know can be rebutted, easily.

Friday, May 16, 2014

When Potholes Meet Privatization

My use of potholes as the poster child for what is wrong with the public fiscal policy perspectives advanced by the anti-government, anti-tax crowd caught the attention of a long-time reader, who shared with me three reports. Two expanded my understanding of pothole effects, and the most recent highlighted the relationship between potholes and another of my concerns about anti-government, anti-tax policies, the privatization ploy.

The first report explained that potholes cause far more damage than things I had previously mentioned. I had focused on damaged front-end alignments, wrecked tires, and pothole-triggered accidents causing death, injuries, and property damage. The first report adds to the list things such as back injuries caused by hitting potholes, swerving to get around potholes, and slamming on the brakes to avoid potholes. The list of complications reads like a medical school text, but it is unimaginable that anyone would be pleased if they suffered prolapsed inter-vertebral disc, whiplash, or vertebral compression fractures after encountering a pothole. Although some people are more at risk, no one is safe. The second report is the story of how a pothole “saves a man’s life.” An ambulance transporting a man with a life-threatening rapid heartbeat hit a pothole, and the impact knocked the fellow’s heart rate back to normal. Despite the silver lining in the pothole cloud, potholes remain a serious threat to life, limb, and property, notwithstanding the good fortunes of one man. As I explained in Liquid Fuels Tax Increases on the Table, You Get What You Vote For, Zap the Tax Zappers, Potholes: Poster Children for Why Tax Increases Save Money, When Tax and User Fee Increases are Cheaper, and Yet Another Reason Taxes and User Fee Increases Are Cheaper, it is far better to pay taxes and user fees than to be saddled with the much higher cost of lost lives, crippling injuries, and property damage.

According to the third report, the town of North Bergen, New Jersey, using municipal employees and equipment, repaired 700 potholes at a cost $50,000 less than what it would have cost using private contractors. The cost to taxpayers of keeping the work in-house was approximately $1,000 per day. Private contractors would have charged the town $3,000 per day. That $2,000 daily difference represents the profits sought by the private sector, a factor that does not exist when public tasks are done publicly. As for the claims by privatization advocates that the private sector is more efficient, there is nothing to indicate that the private contractors would have generated at least a three-fold increase in the number of potholes repaired each day.

From every angle, potholes teach us why taxation is not evil and why privatization of public responsibilities isn’t the panacea its advocates claim that it is. Fortunately, there seems to be a slowly growing understanding among Americans that the smooth ride promised for several decades by the anti-tax, anti-government lobby is, in fact, quite a bumpy and dangerous journey. It’s time to hit the brakes on that failed philosophy before even more damage is done.

Wednesday, May 14, 2014

If You Don’t Like It, Call It a Name, But Don't Call It a Tax If It's Not a Tax

Most of us do not enjoy sitting at red lights. Most of us do not enjoy shelling out money for something because we would prefer to get it for free. How can we convince other people to join with us in making the world bow down to us? The answer, it seems, is to tag what we don’t like with a name, a name that will rile up others and bring them to join our ranks. The answer, it seems, is to call it a tax.

This is not the first time that I have objected to the twisting of language, specifically the misuse of the word “tax,” to attain a goal better met through genuine intellectual argument and analysis rather than sound-bite name-calling. In The “Rain Tax”?, I explained that a storm management fee imposed by the state of Maryland was not a tax, but a fee to defray the costs of permitting runoff from one’s property. In A Tax or a Ban: Which is Better?, focusing on attempts to improve public health, I noted that “Some health insurance companies provide premium discounts for insureds who regularly exercise. However one wants to characterize the higher premiums paid by those who don't exercise enough, it is not a tax. It isn't imposed by a government.” In Please, It's Not a Tax, I rejected the use of the term “curb tax” to characterize parking fines.

On Monday, in a letter to the editor of the Philadelphia Inquirer, Ken Greiff argued that “Ad pollution on Philadelphia’s municipal architecture is a tax.” He explains that “It’s a tax on our peace of mind and a tax on our consumer autonomy.” It’s not a tax. Greiff makes several good points. Plastering advertisements on public property is, as he puts it, “a defilement,” something similar to “graffiti, litter, blight, or unmaintained schools.” It ruins our “clear vistas.” It is caused by corporations getting more out of the advertising than they are paying the municipality. Many of the ads are for products that, in the long run, aren’t beneficial. It is, as he puts it, “a sign that no one cares, that you have been sold out.”

A tax is a financial imposition levied by a government or government entity, or a non-governmental organization acting on behalf of or under specific revenue-collecting authority of a government or government entity. To be more specific, this definition from Lectric Law Library's Lexicon will help a lot of people doing crossword puzzles: “This term in its most extended sense includes all contributions imposed by the government upon individuals for the service of the state, by whatever name they are called or known, whether by the name of tribute, tithe, talliage, impost, duty, gabel, custom, subsidy, aid, supply, excise, or other name."

So why does Greiff use the word “tax”? I answered that question when I explained my objection to the use of the word “tax” by Michael Silverstein to describe parking fines, in Please, It's Not a Tax:

Why does Silverstein use the tax label for something that is not a tax? The answer is simple. The anti-tax crowd does a knee-jerk reaction to the word, so that announcing that a "curb tax" has been increased will bring out the anti-tax zealots in far greater numbers and with far more intensity than the more mundane, but more truthful, announcement that parking meter charges and parking ticket fines have been increased. I wonder what the anti-tax crowd would do if someone started referring to the cash register total in a grocery store as a grocery tax, the invoice from People Magazine as a reader tax, and so on. Putting the label of tax on a fee or charge that one doesn't like is a very misleading way of making a point.

In the long run, Greiff would do better to call the corporate advertising invasion what he understandably thinks it is, a defilement, a blight, an eyesore, a menace, a threat to health, a sign of greed run amok. In the long run, this focuses the debate on the substance of the issue, rather than tossing the outcome to the consequences of using a word as an intended insult. Calling it a tax lets the advocates of this unattractive phenomenon reply, “It’s not a tax.” Calling it an eyesore focuses the discussion on the essence of the matter.

Monday, May 12, 2014

Yet Another Reason Taxes and User Fee Increases Are Cheaper

One of my many disagreements with anti-tax arguments is that they are so focused on the short-term that they miss the present value of the long-term. My favorite illustration of this point is the infamous pothole. In Liquid Fuels Tax Increases on the Table, I wrote, “Leaving gasoline taxes at their current levels guarantees more bridge collapses, and pothole-caused front-end alignment repair costs that will take more out of motorists’ pockets than the proposed tax increases.” I made the same point in You Get What You Vote For, when I predicted that “front-end alignment spending will skyrocket past the small amounts that would have been paid if the [highway repair tax funding] proposal had been enacted.” In Zap the Tax Zappers, I explained why tax evaders need to face the consequences with these words, “Lest this be thought too rough, think of the person who dies when their vehicle hits a pothole and goes out of control, a pothole not repaired because of revenue shortfalls and spending cuts triggered by the actions of a group of people who refuse to pitch in and fulfill the obligations of citizenship.” In Potholes: Poster Children for Why Tax Increases Save Money, I shared news from the United Kingdom that the cost of damage caused by potholes exceeds the tax or user fee necessary to fix the pothole, and news from Los Angeles that potholes cause $750 of damage annually for each vehicle. Finally, in When Tax and User Fee Increases are Cheaper, I tried to drive the point home with these words: “There are times when it makes sense to increase taxes or user fees in order to prevent even higher costs. Given the choice between paying an additional $150 in highway user fees or $750 in pothole repair costs, rational people would choose the former.”

Now comes even more evidence of how fiscal short-sightedness can have long-term disadvantageous consequences, both for public financial health and for individual safety. According to this report, a woman who was severely injured when the tourist bus she was riding hit a pothole, throwing her out of her seat, has settled her claim against the company for $450,000. The pothole responsible for the damage apparently had been unrepaired for a long time. For all I know, it might still be unrepaired. It’s clear that the reason it is unrepaired is that the city of Philadelphia lacks the funds to repair the pothole. Whenever it discusses raising taxes, or increasing transportation-related fees, or whenever someone suggests a reform of motoring fees by the state so that resources can be made available for repairing potholes and doing other maintenance, a howl of protest arises. These protests often are described as advocacy for business enterprise, and far too often, they succeed.

So how did this work out for the company? Whether or not it spoke up for or against tax increases to repair highways, it ended up not paying increased taxes. Instead, it now must shell out almost half a million dollars, surely far more by orders of magnitude than what it would have paid under any of the transportation tax reforms that have been proposed. My guess is that the company will be reimbursed for much, if not all, of the payment by its insurance carrier. But I’m also going to guess that its premiums will go up, and it’s not unlikely that the premium increase also will exceed the additional taxes the company would have paid under the proposed reforms.

So are those anti-tax folks who pretend to be advocating on behalf of business doing much good for businesses? Hardly. And it appears that at least smaller business owners are beginning to realize that what’s good for the huge enterprises is bad for Main Street, which generates most of the new jobs created in this country. So the true job creators are being hurt by those who pretend to be job creators but who are nothing more than greedy people who think they are entitled to own everything.

The anti-tax resistance to appropriate funding of public enterprise is turning out to be one of the biggest Ponzi schemes in history, in which increasing amounts of American wealth fall into the hands of the elite few at the top of the pyramid. It’s going to come crashing down, one way or another. The choice for America is whether it is dismantled safely, brick by brick, or collapses on top of everyone, crushing them into oblivion.

So one would expect that those opposed to enlarging the federal budget deficit would favor reducing spending, increasing revenue, or both. One would expect that those who passionately fight for spending cuts are determined to reduce the budget deficit, especially when they advance cutting the federal budget deficit as the primary reason for the spending cuts.

So imagine how confusing it must be to Americans to learn that advocates of federal budget reduction through spending cuts have voted, according to this report, to INCREASE the federal budget deficit by approving revenue decreases. Does it seem a bit hypocritical? Of course it does. Does it make sense? Yes, it does, if one understands that reducing the federal budget deficit is not a serious concern of at least some of those who use deficit reduction as an excuse to cut spending. How does it make sense? Reducing the budget deficit is “important” to the extent it justifies cutting spending that benefits those not favored, but has no meaning when it comes to reducing revenue by dishing out tax breaks to the favored.

Who is favored? Who is not favored? That one is easy. Spending that benefits the economically disadvantaged is cut while tax breaks the help the wealthy are approved. It’s just another piece of the plan to shift wealth to the favored elite and subject the masses to, at best, peasant treatment. At what point will the 99 percent wake up?

In response to recent news stories about cronyism and other practices afflicting the DRPA, Andrew Terhune of Philadelphia, in a letter to the editor of the Philadelphia Inquirer suggests that DRPA’s problems are caused by politics and cronyism and that the only way to eliminate those behaviors is to privatize the agency. Although he does not specifically say so, Terhune proposes that each bridge would be operated by a different private operator, because he portrays a situation in which the operators of each bridge “had to compete against each other for our business.” Although I agree with Terhune that cronyism and politics are a problem, the solution is to clean up politics. When a house is a mess, simply moving to another residence while leaving behind the garbage doesn’t make the neighborhood any less smelly.

The first problem with Terhune’s proposal is that motorists are not going to drive miles out of their way in order to pay $3.90 rather than $4.00 to cross a river. A person who lives in southern Delaware County who wants to go to Mullica Hill would be foolish to burn fuel, sit in I-95 and I-295 traffic, and waste time by crossing on the Walt Whitman Bridge rather than the Commodore Barry Bridge. Similarly, someone in Trenton isn’t going to use the Benjamin Franklin Bridge to get to Bristol. Though there are some instances where the choice of bridge is “six of one and a half dozen of the other,” there aren’t enough motorists in that position to make competition realistic.

The second problem with Terhune’s proposal is that at some point all of the crossings will end up being owned, directly or indirectly, by one private company. What guarantee exists that this company will operate the bridges in the best interests of the public, in contrast to the best interests of its shareholders? No such guarantee exists. It hasn’t existed for previous privatization profit grabs, and it would not exist in this case. Motorists would not have the realistic option of refusing to purchase the company’s services, as there is no other way to cross the river. Nor can motorists vote out the company’s directors, or shift operation and ownership of the bridges to another enterprise.

The problem with the DRPA is that its members are appointed rather than elected. Motorists cannot affect the board other than through the indirect process of voting for the governors of Pennsylvania and New Jersey, but gubernatorial races are cluttered with all sorts of issues that put the DRPA concerns near the end of the list. With direct election, DRPA board members would be far more attentive to the motorists who pay their salaries and have fewer opportunities to engage in the sort of behavior that has created the problems. Coupled with direct voting should be even stronger transparency regulations, so that the board operates in full public view. The third element of reform would be enactment and tough enforcement of criminal laws putting board members at risk of conviction if they engage in behavior that violates the public trust. Putting DRPA operations into the hands of private companies would generate problems that make the current difficulties appear to be minor glitches.

The attempt to eliminate real property taxes has resurfaced. According to this report, a member of the legislature, with bipartisan support, want to repeal the property tax. It is unclear how the lost revenue would be replaced, though the identity and background of the proponent makes it difficult to rule out the possibility that there is no intention to replace the revenue. Supporters of the repeal claim that the tax is unpopular. It is, but considering that all taxes are unpopular, that argument proves nothing. They also claim that the property tax increases at a rate faster than do incomes, and that the tax accordingly disfavors homeowners on the lower end of the income scale. That’s very true. Opponents of the repeal claim that property taxes are easier to collect than income or sales taxes, don’t generate reduced revenue when the economy slips, and are more difficult to evade. These points also are true, though one can argue that with more efficient revenue administration, the evasion of income and sales taxes can be curtailed.

The previous proposal, the Pennsylvania Property Tax Independence Act, would permit school districts in effect to piggy-back on the state income tax, an idea that I had advocated in my earlier posts on real property tax replacement. But that proposal also suggested the enactment and expansion of earned income taxes, a tax that I consider reprehensible because it shifts the burden of funding government from the wealthy to the working person.

A proposal to repeal a tax makes no sense unless the revenue is replaced, because cutting services any more than they have been cut in Pennsylvania would usher in a new Stone Age. The determinative question is what sort of replacement tax the proponents of this latest proposal have up their sleeves. Pennsylvania taxpayers need to pay close attention.

Friday, May 02, 2014

Are the Bells Tolling for Highway Infrastructure Chaos?

The Obama Administration’s budget, according to this report proposes repeal of a federal law that prohibits imposing tolls on interstate highways other than the roads that were toll roads before they became part of the interstate system. It is understandable why the Administration is making this proposal. States are running out of money to maintain and repair interstate highways, because the inefficient liquid fuels tax is generating less revenue at a time when highway infrastructure presents increasing repair needs. The Highway Trust Fund is projected to run out of money by August. An alternative proposal – putting $150 billion into the fund by enacting some one-time corporate tax reforms – is getting little support from Congress. Of course, the Congress is responsible for the mess, but continues to promote failing highways as part of its attempt to cater to the anti-tax crowd rather than showing leadership by explaining to America that taxes pay for things Americans need, like safe highways.

The Administration’s proposal, though well-intentioned as a solution to a problem created by the Congress, is far from ideal and poses challenges. My thoughts on using highway tolls are summarized in Toll Increases Ought Not Finance Free Rides, a post that cites and quotes dozens of my earlier commentaries on the subject. Do I object to tolls? No. As I explained in User Fees and Costs, using tolls to cover the cost of “building, expanding, improving, repairing, maintaining, policing, and monitoring the road” makes sense. But it also requires consideration of the impact that tolling a highway has on nearby roads. As I explained in that post:

The analysis I support is one that looks at the impact of the toll road and its use on surrounding residents, neighborhoods, and infrastructure. Traffic volume surrounding a toll road interchange is higher than it otherwise would be, and that generates additional costs for the local government. It makes sense to include in the toll an amount that offsets the cost of widening adjacent highways, installing traffic signals, increasing the size of the local police force, adding resources to local emergency service units, and similar expenses of having a toll road in one's backyard. I understand the argument that because the locality benefits economically from the existence of the toll road and its interchange that it ought not be subsidized by the toll road. It is unclear, though, whether the toll road is a net benefit or disadvantage. If it were such a wonderful thing, why are new roads so vehemently opposed by so many towns and civic organizations.

Listen carefully, members of Congress. Listen carefully, President Obama. Listen carefully, special interest groups and lobbyists. Listen carefully, America. It is time to implement twenty-first century funding approaches to a twenty-first century problem encountered by people living in the twenty-first century. It is time to put away the road financing methods of the seventeenth, eighteenth, nineteenth, and twentieth centuries. Failure to do so will take transportation, and thus the economy, back to the Stone Age.